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Anne Marie Estevez’s colleagues in the defense bar gave a simple assessment of her chances of beating a wage-and-hour class certification against Blockbuster, Inc.: “You’re going to lose.” Store managers claimed Blockbuster had cheated them out of overtime pay, and plaintiffs lawyers were looking to certify a nationwide class. The odds were on their side. The case was filed in Miami federal court, a notoriously tough venue for retailers looking to strangle wage-and-hour actions at the class cert stage. Starbucks Corporation and RadioShack Corporation had lost similar battles there. For defense lawyers, the conventional wisdom went: Better to focus on beating the case at summary judgment. Estevez didn’t buy it. The Morgan, Lewis & Bockius partner and her team prepared 2,500 pages of testimony and declarations aimed at proving there was no class to be certified: Managers around the country had different responsibilities and couldn’t possibly be considered a single class. The move impressed U.S. district court judge Adalberto Jordan, who heard the issue when it was argued last February. When plaintiffs counsel complained that Morgan, Lewis was turning the class cert hearing into an argument on the merits of the case, Jordan replied: “Yeah, but see, not in every case does a defendant do what Blockbuster did in this case. I’ve had plenty of Fair Labor Standards Act cases with plenty of opt-in classes, where the defendants fight class certification, but not on fact-based grounds.” Jordan denied certification. So much for the conventional wisdom. During the last two years, Morgan, Lewis’s creative approach to employment litigation has helped it smack down class actions, win international contract disputes, and foil ERISA claims. The firm’s lawyers showed off expertise in nearly every employment niche � and in nearly every part of the country. The victories seem all the more impressive because of the firm’s rapid expansion: It’s added more than two dozen lawyers to its employment team in the last few years and has made a convincing play for work in the most important employment law market in the country, California. “They take their [cues] to what the client wants,” says Judy Norris, senior corporate counsel at Blockbuster, who has used the firm in a number of states. “They are very creative . . . and are willing to go full-bore” to fight a case when needed. Indeed, the Blockbuster case in Florida was followed by a win for the company in Colorado. Other Morgan, Lewis clients had similar success. In California the firm saved American Airlines, Inc., from a potentially embarrassing loss in a racial harassment trial. For Morgan Stanley, it negotiated a complex settlement with the Equal Employment Opportunity Commission over alleged sexual discrimination. And in Florida the firm successfully argued at a bench trial that Spanish-language television company Telemundo Communications Group, Inc., had the right to hire a Mexican soap opera star who had a contract with a competitor. It’s that track record that earned Morgan, Lewis its victory in the Labor and Employment category of The American Lawyer’s Litigation Department of the Year contest: “We have followed a strategy of serving the biggest companies in the world where they have a need for us in every legal issue that touches upon the employee relationship,” says practice leader Steven Wall. (The American Lawyer is a sibling publication of Corporate Counsel.) Morgan, Lewis partners boast a lot about their department’s national “footprint” and the resources they bring to any case. Wall can’t hide his excitement when discussing the growth he has overseen. He reels off stats about his department’s partners like a proud baseball manager: Six are African Americans, and 17 are women. Thirteen partners tried a case to verdict in the last two years. The depth of talent has attracted partners like Estevez, who came to Morgan from Miami’s Steel Hector & Davis in 2000. The 37-year-old Estevez, described by one colleague as a “walking business machine,” has quickly made her presence felt. While at Morgan, she’s served as lead counsel in 22 collective and class actions, according to her count. The firm’s depth and national scope has led to bigger cases, she says. “There are people in other offices that are just like you [with the] same level of understanding,” says Estevez. Historically, the firm’s footprint west of Pennsylvania hasn’t been as visible. The firm has long tried cases around the country, but its name hasn’t meant much to the clients or competition in California � which, with a plaintiff-friendly state legislature and a set of labor codes that are substantially more protective of employees than other states, has become the national laboratory for labor and employment law. Morgan, Lewis came to California in 1976, but during the seventies and eighties, the firm largely ceded the giant labor and employment market to established players, notably finalist Paul, Hastings, Janofsky & Walker; Gibson, Dunn & Crutcher; and O’Melveny & Myers. But by the 1990s, Morgan felt pressure from existing clients to expand. It moved slowly at first, but it has recently pushed fast-forward. Three years ago, the firm only had 12 labor and employment lawyers in California. Today it has around 50. Morgan has been able to attract attorneys from competitors like Sonnenschein Nath & Rosenthal, Cooley Godward, and the now defunct Brobeck, Phleger & Harrison, as well as top former government officials. In 2005 the firm welcomed back Peter Hurtgen, former chairman of the National Labor Relations Board. The firm has made the most of its recent opportunities in California. Last March partner Robert Jon Hendricks represented American Airlines at trial in Los Angeles. Jawad Alamad, a former American Airlines mechanic, sued his former supervisors and employer for harassment and wrongful termination based on his Middle Eastern background. The airline’s associate general counsel, Randall White, considered it the airline’s most important trial in recent years. Throughout the case, Hendricks litigated an important and potentially far-reaching issue regarding a union privilege. Hendricks had deposed a union leader at American about Alamad’s accusations. The union leader, Richard DiMarco, claimed he could corroborate Alamad’s allegations, but when Morgan, Lewis lawyers deposed DiMarco, he said that he couldn’t reveal the names of Alamad’s harassers because of a union-member privilege. Morgan, Lewis lawyers went to court to force his testimony. Ultimately, a court of appeals in California ruled that the communications were not privileged. During his closing argument at trial last year, Hendricks attacked DiMarco’s credibility, noting he never directly saw the alleged harassment. Hendricks pleaded with jurors not to reward Alamad for an unproven case: “You do not want to send the wrong message. Enforce the law, yes. But this is not the lottery. This is not a gift. The plaintiff has failed to meet his burden. Not one penny to Mr. Alamad.” After a six-week trial, the jury returned a verdict for American Airlines. An in-house team from American Airlines presented Hendricks and his team with a plaque that read in part: “Not one penny.” “I’d recommend R.J. to anyone as long as it doesn’t take away time from us,” says American Airlines’s White. Hendricks’s colleague, Andrew Peterson, also had a splashy victory in California. Peterson, who came to Morgan, Lewis from Paul, Hastings in 1996, found a way around an important � and plaintiff-friendly � California Supreme Court ruling. A 2004 case involving Sav-On Drug Stores, Inc., established a lenient standard for certifying a class � and caused something of an earthquake among California’s employment bar. The Sav-On opinion required only that plaintiffs demonstrate they shared common issues; pointing out differences among the plaintiffs was not enough to block a certification ruling. Peterson represented Maersk, Inc., and APM Terminals. A proposed class of superintendents was seeking overtime pay and penalties for missed meal and rest periods from the terminals. Peterson’s team argued that the only issues the superintendents shared was their employer’s expectations and that the differences among them predominated. In a June order, superior court judge David Velasquez denied certification, making it one of the first post � . Morgan’s westward expansion hasn’t been just in California. The firm has also added lawyers in Chicago, where it opened in 2003. In 2005 it snagged five lawyers from another finalist, Seyfarth Shaw, including one of its former management committee members, Charles Jackson. The office has already produced impressive results. Partners David Ackerman and Theodore Becker, who came to Morgan from Jenkens & Gilchrist in 2004, successfully defended LaSalle Bank Corporation in an approximately $300 million case brought by participants in the employee stock ownership program of Armstead Industries Inc., after the company’s stock lost half its value. Plaintiffs alleged that LaSalle, as trustee of the program, breached its fiduciary duty by overvaluing the stock and failing to take certain steps to prevent the decline. In a decision that’s been widely studied by the employee stock ownership community, LaSalle won on summary judgment. Complicated cases like that have Morgan optimistic about its future. Far from seeing employment cases becoming routine, the firm believes they’re just beginning to evolve. Partner Mark Dichter notes that pay disparity claims from minorities are one of the hottest areas of litigation. Says Dichter: “What we’re moving into is a new generation of claims.” During a recent trip to Europe, as minorities were protesting in Paris, Dichter also heard discussion about the U.S. affirmative action system, which has got him intrigued about the future of employment litigation in Europe. Maybe it’s time to start working on that international footprint. This article was excerpted from a special report in The American Lawyer.

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